January 17, 2011 | Phil

Mass UK P2P trial becomes an 'off the scale' legal quagmire; ACS:Law ridiculed

A mass-lawsuit campaign directed by MediaCAT and their calamitous lawyers (ACS:Law) has taken yet another turn for the worse today, as a court hearing this morning became a total fiasco.

It once again highlights the severe problems caused when subjecting everyday citizens to the complexities of copyright law and shows the stress and complication of the litigation that piggybacks off it. Such litigation rests on technologically questionable IP-gathering evidence with what was - until recently - the complicity of some of the UK's largest ISPs, who were charging for their services.

Legally unprepared citizens, who could not in the first place afford expensive lobbyists to get copyright law changed in their favour, for the most part cannot afford the expensive solicitors needed to confront theses accusations.

The tactics being used by rightsholders are very questionable: they can be seen as an attempt to extort money from those receiving solicitors’s letters, based on often unfounded accusations. An industry of rightsholders their lawyers has sprung up to take advantage of this tactic, sometimes known as “speculative invoicing”, who ask those incapable of fighting the accusations to pay up, without a court deciding on their guilt or innocence.

Background to the case

Today's proceedings in the Patents County Court (the UK's specialist Intellectual Property court) were between MediaCAT and 27 independent defendants. Judge Birss QC recently found so many procedural and legal irregularities in how MediaCAT was going about its business that he was dealing with all MediaCAT cases at once.

The copyright settlement industry usually doesn't like bringing cases to court. MediaCAT's lawyers, ACS:Law, are facing disciplinary proceedings for failing to bring individuals to court, but merely engaging in “speculative invoicing”  (as well as for an alleged massive breach of data protection law). It is thought that a major reason MediaCAT had brought these cases was that their ACS:Law would be able to say that they are prepared to actually put their accusations in front of a court.

ACS:law presumably assumed that these 27 cases were water tight: selected because they could be won on technicalities without either discussing the actual filesharing allegations, the law on filesharing, or casting light on the problems with consumers facing the burdens of copyright law. But all 27 have blown up in their faces, in part thanks to the judge (Judge Birss QC) showing meticulous attention to detail, possibly out of concern at MediaCAT's mass approach to copyright enforcement against ordinary netizens.

What happened today

It was revealed that last week MediaCAT attempted to drop all 27 cases, rather than fight them. Citing new procedural irregularities and complications, Judge Birss QC was not able to give MediaCAT the court's permission to walk away from its lawsuits. Citing a 'family member's traffic accident this weekend', ACS:Law's under-fire solicitor Andrew Crossley was 'unable to attend'. Crossley's absence meant that MediaCAT's lawyers were left uncertain as to how to proceed, and the case had to be postponed. Judge Birss QC has therefore given everyone (including himself) a week to examine this latest tangle in the MediaCAT/ACS:Law quagmire (a follow-up hearing is scheduled for next Monday, 24th Jan).

The defendants struck back

The lawyers for some of the defendants launched a devastating counter-attack against MediaCAT, demanding punitive damages: "off the scale" were apparently the words used. MediaCAT and ACS:Law have behaved so inappropriately in suing these 27 people, that only punishingly high costs would be fair, they argued. Judge Birss QC's ruling on that point has been postponed for a later court hearing.

What happens next:

The court will reconvene next Monday, 24 January, to rule on some of the issues. It seems likely that yet another court hearing after that will be required to put that it bed.

Will that be the end of this story?

In yet further nastiness, there are some early reports from witnesses at the court that MediaCAT’s lawyers are saying that even after dropping the cases, they may want to revive them at a later date. This apparently shocked Judge Birss QC, who said that such a suggestion was “unprecedented” in his career.

A question has cropping up as to whether MediaCAT is even entitled to bring these lawsuits on behalf of the actual rightsholders. If it wasn't, this raises interesting questions about the attention to detail of the judge that has been ordering ISPs to hand over subscriber details (Chief Master Winegarten); these orders have allowed MediaCAT to threaten tens of housands of ordinary people with legal action. ISPs may also attract the ire of recipients of these letters, for being so complacent in handing over subscriber details and for their ongoing failure to make amends.

In the mean time, ACS:Law appears to have passed off its responsibility for an ongoing campaign of writing threatening letters. Picking up that baton seems to be a shell company, GCB Ltd. Suggestions have emerged that this company - which isn't a registered law firm - is being used to mask the true identity of the lawyer behind the new wave of threatening letters. Unconfirmed netizen investigations point a one-man operation Hobson & Arditti being the undercover solicitor.

This article has been amended since publication